Williams v. Rentz Banking Co., 41462

• Decision Date: 17 September 1965
• Docket Number: No. 1,No. 41462,41462,1
• Citation: 112 Ga.App. 384,145 S.E.2d 256
• Parties: Felton WILLIAMS et al. v. RENTZ BANKING COMPANY
• Court: Georgia Court of Appeals

Page 256

145 S.E.2d 256

112 Ga.App. 384

Felton WILLIAMS et al. v. RENTZ BANKING COMPANY.

No. 41462.

Court of Appeals of Georgia, Division No. 1.

Sept. 17, 1965.

Rehearing Denied Sept. 28, 1965.

Syllabus by the Court

The allegations of the defendants' answer were sufficient to allege duress as a valid defense to the note sued upon, and the trial court erred in sustaining the plaintiff's demurrers to the paragraphs of the answer seting forth this defense, and in entering final judgment for the plaintiff.

This was a suit on a promissory note, allegedly executed by the defendants on June 22, 1963, in the face amount of $3,658.85, and payable to the plaintiff banking company on demand. The defendants in their amended answer to the petition purported to set up two principal defenses to the action: (1) a plea of non est factum based on the allegations of paragraph 8 of the answer in which it was alleged that the defendants had not signed the note sued upon in the face amount of $3,658.85 and dated June 22, 1963, but that they had executed on said date a note in the face amount of $2,058; and (2) a plea of duress based upon the allegations of paragraph 9 of the answer in which it was alleged that the note executed by them on June 22, 1963, payable to the plaintiff banking company, had been signed only after they had been 'threatened' and 'abused' by two named officers of the plaintiff company and that 'they were not allowed to leave the bank until they had complied with the demands of the plaintiff and signed.' The defendants further alleged in their answer that they did not owe the plaintiff the amount sued for, and in support of this allegation, a detailed account of the past financial transactions between the defendants and the plaintiff banking company was set forth.

The trial court overruled the plaintiff's special demurrer to paragraph 8 of the answer which contained the plea of non est factum and its general demurrer to the answer and sustained the remaining grounds of special demurrer including the special demurrers addressed to paragraph 9 which contained the defendants' plea of duress. Upon the call of the case for trial, the defendants' attorney announced that he was abandoning the plea of non est factum and stipulated that the plaintiff was entitled to a judgment under the pleadings subject to the defendants' right to appeal. Judgment was thereupon entered for the plaintiff, and the defendant excepted, assigning error on the final judgment and on the antecedent ruling of the court sustaining the plaintiff's demurrers to the answer.

C. C. Crockett, H. Dale Thompson, Dublin, for plaintiffs in error.

Jones & Douglas, Eric L. Jones, Paul J. Jones, Jr., Dublin, for defendant in error.

JORDAN, Judge.

The primary question presented here is whether or not the allegations of paragraph 9 of the defendants' answer were sufficient to set forth the defense that the defendants had executed the note sued upon under duress as against the plaintiff's special demurrers addressed thereto.

'Duress is considered as a species of fraud in which compulsion in some form takes the place of deception in accomplishing an injury, and, like fraud, constitutes a meritorious ground to set aside a contract executed as a result thereof.' King v. Lewis, 188 Ga. 594, 597, 4 S.E.2d 464, 467. 'The free assent of the parties being essential to a valid contract, duress, either of imprisonment or by threats, or other acts, by which the free will of the party is restrained and his consent induced, will render the contract voidable at the instance of the injured party. Legal imprisonment, if not used for illegal purposes, is not duress.' Code § 20-503. 'Duress consists in any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to coercion or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will.' Code § 96-209. 'This definition is sufficiently comprehensive to include any conduct which overpowers the will and coerces or constrains the performance of an act which otherwise would not have been performed.' Dorsey v. Bryans, 143 Ga. 186, 84 S.E. 467.

'Accordingly, it has been held that threats of physical violence or masked threats of punishment may constitute such duress was will authorize a party to avoid a contract executed on account of same (Jones v. Rogers, 36 Ga. 157); and that threats of bodily harm may amount to such duress as would avoid a contract executed solely on account of same. Love v. State, 78 Ga. 66, 3 S.E. 893, 6 Am.St.Rep. 234. See Bond v. Kidd, 122 Ga. 812, 50 S.E. 934. The threats must be sufficient to overcome the mind and will of a person of ordinary firmness.' King v. Lewis, supra, 188 Ga. at p. 597, 4 S.E.2d at p. 467. It has also been held that a threat to detain the property of another, unless notes were executed, could constitute duress, Whitt v. Blount, 124 Ga. 671, 674, 53 S.E. 205, 206: 'According to the weight of modern authority, the unlawful detention of another's goods under oppressive circumstances, or their threatened detention, will avoid a contract on the ground of duress, for the reason that in such cases there is nothing but the form of agreement, without its substance.'

'Mere' threats or 'empty' threats, where there is no apparent intention and ability to execute them are not sufficient, however, to constitute duress. Littlegreen v. Gardner, 208 Ga. 523, 67 S.E.2d 713; Hoover v. Mobley, 198 Ga. 68, 31 S.E.2d 9. 'The facts which are essential to constitute duress must be such as are sufficient to subvert the will of the party alleged to be under duress, and to substitute for his will the will of another,' Candler v. Byfield, 160 Ga. 732, 737, 129 S.E. 57, 59; and where no facts are stated from which duress can legally be implied, the plea is subject to special demurrer. Sutton v. Hurley, 12 Ga.App. 312, 314, 77 S.E. 218.

Turning to the present case, and...